5th Circuit strikes Texas PAC waiting period requirements

AUSTIN — A federal appeals panel has struck down Texas’ waiting period for newly-formed political action committees, ruling that time and contributor thresholds imposed by the state before a PAC can engage in political activity are unconstitutional.

The decision effectively quashes a 1987 provision in the Texas Election Code that mandated PACs have to wait a minimum of 60 days and have accepted contributions from at least 10 donors before making $500 in political expenditures. The waiting period only applied to “general purpose” committees.

In an opinion issued Tuesday, a panel of the New Orleans-based 5th U.S. Circuit Court of Appeals wrote that Texas’ 60-day waiting period and 10-donor requirement are “facially unconstitutional as contrary to the First Amendment.”

State lawyers argued the statute equates to a disclosure requirement and does not prevent citizens from engaging in political speech. State lawyers also argued that forming a “specific purpose” committee, a type of PAC that supports expressly identified candidates and is not subject to the waiting period, provides an avenue for groups to engage in political speech sans the time and contributor limits.

The court rejected those arguments.

“Texas’ argument runs contrary to both Supreme Court and circuit precedent,” the three-judge panel wrote. “Just as we do not permit the government to silence the New York Times because the reporters could shout-out their stories in Central Park or publish them on the Internet, we do not permit the government to silence various political organizations simply because their component parts have other opportunities for speech.

The Texas Ethics Commission, tasked with enforcing the waiting period under state law, referred questions to the Attorney General’s Office, which defended the state agency in court.

A spokeswoman for the AG’s Office said it is currently reviewing the court’s decision and weighing options for an appeal.

The case was brought by the Catholic Leadership Coalition of Texas, a politically active nonprofit, and a group of PACs that argued the state’s waiting period “hindered” their ability to fully participate in a July 2012 runoff election. All of the groups that sued, which includes the Texas Leadership Institute for PublicAdvocacy, Friends of SAFA Texas and the Texas Freedom PAC, are based in San Antonio.

The court’s ruling was hailed as victory for free speech by those who sued the state.

“The government can never impose a waiting period on political speech, and the court properly rejected the TEC’s attempt to cloak this pernicious speech ban as a mere disclosure requirement,” said Jerad Najvar, a Houston-based campaign finance lawyer who represented the groups in the lawsuit.

The court did uphold a portion of the state’s election code that requires PACs to register and appoint a treasurer, along with rejecting a narrow challenge to Texas’ ban on corporate contributions.